|
STATE OF INDIANA |
) |
|
BEFORE THE INDIANA DEPARTMENT |
||
|
|
|||||
|
COMMISSIONER OF THE DEPARTMENT Complainant, v. INDIANA
SOUTH DISTRICT OF THE Respondent. |
) |
|
|||
AGREED ORDER
Complainant
and Respondent desire to settle and compromise this action without hearing or
adjudication of any issue of fact or law, and consent to the entry of the
following Findings of Fact and Order. Pursuant to Indiana Code (IC) 13-30-3-3,
entry into the terms of this Agreed Order does not constitute an admission of
any violation contained herein. Respondent's entry into this Agreed Order shall
not constitute a waiver of any defense, legal or equitable, which Respondent
may have in any future administrative or judicial proceeding, except a
proceeding to enforce this order.
I. FINDINGS OF FACT
1.
Complainant is the Commissioner (Complainant)
of the Indiana Department of Environmental Management (IDEM), a department of
the State of Indiana created by IC 13-13-1-1.
2.
Indiana South District of the Wesleyan Church,
Inc. (Respondent) owns and/or operates a
transient non-community public water system (PWS) with PWSID No. IN2550966
serving 38 persons at New Life Community Wesleyan Church, Inc. The PWS is
located at 4356 East State Road 144, Mooresville, Morgan County, Indiana (the Site).
3.
IDEM has jurisdiction over the parties and the
subject matter of this action pursuant to IC 13-30-3.
4.
Pursuant to IC 13-30-3 et seq., IDEM issued a
Notice of Violation via Certified Mail to:
|
Dr. Mark Eckart, Registered Agent |
Lois Pardue, Registered Agent |
|
Indiana South District of the |
New Life Community Wesleyan |
|
Wesleyan Church, Inc. |
Church, Inc. |
|
1597 South Maple Street |
831 Meadow Court |
|
Orleans, Indiana, 47452 |
Mooresville, Indiana 46158 |
5.
327 Indiana Administrative Code (IAC) 8-2-2
states each PWS shall comply with all provisions of this rule and 327 IAC
8-2.1.
6.
Pursuant
to the Revised Total Coliform Rule at 327 IAC 8-2.4-1, 40 CFR 141, Subpart Y is
incorporated by reference.
7.
Pursuant
to 40 CFR 141.853(a), a PWS must develop a written site sampling plan that
identifies a sample collection schedule and sampling sites that are
representative of water throughout the distribution system not later than March
31, 2016. These plans are subject to State review and revision. Systems must
collect total coliform samples according to the written site sampling
plan. Monitoring required by 40 CFR
141.854 through 40 CFR 141.858 may take place on a customer’s premise,
dedicated sampling station, or other designated compliance sampling location.
Routine and repeat sample sites and any sampling points necessary to meet the
requirements of 40 CFR 141 Subpart S must be reflected in the site sampling
plan.
IDEM records indicate that Respondent
failed to submit a site sampling plan by March 31, 2016, and IDEM has not
received a site sampling plan from Respondent to date, in violation of 40 CFR
141.853(a).
8.
Pursuant
to 40 CFR 141.858(a)(1), if a sample taken under 40 CFR 141.854 through 141.857
is total coliform-positive, the system must collect a set of repeat samples
within 24 hours of being notified of the positive result. The system must
collect no fewer than three repeat samples for each total coliform-positive
sample found.
Pursuant to 40 CFR
141.859(b)(3), PWS must conduct a Level 1 assessment consistent with State
requirements if the system exceeds one of the treatment technique triggers in
40 CFR 141.859(a)(1).
IDEM records indicate
Respondent failed to take every required repeat sample, a Level 1 treatment
technique trigger, after the total coliform-positive sample on May 21, 2018, in
violation of 40 CFR 141.858(a)(1).
Respondent triggered a Level
1 assessment pursuant to 40 CFR 141.859(b)(3).
9.
Pursuant to 40 CFR 141.859(b)(3)(i), the system
must submit the completed Level 1 assessment form to the State within 30 days
after the system learns that it has exceeded a trigger.
Respondent triggered a Level 1
assessment as outlined in Paragraph 8. Respondent was notified on June 11, 2018
and failed to complete and submit the Level 1 Assessment form within 30 days
after the system learned that it has exceeded a trigger, in violation of 40 CFR
141.859(b)(3)(i).
10.
Pursuant to 40 CFR 141.402(a)(2) and 327 IAC
8-2.3-4(a)(2), a ground water system must collect, within 24 hours of
notification of the total coliform-positive sample, at least one ground water
source sample from each ground water source in use at the time the total coliform-positive
sample was collected.
IDEM records indicate Respondent failed
to take at least one ground water source sample after the total
coliform-positive sample on May 21, 2018, in violation of 40 CFR 141.402(a)(2)
and 327 IAC 8-2.3-4(a)(2).
Respondent collected one ground water
sample on July 22, 2019.
11.
Pursuant to 40
CFR 141.854(j), a PWS on quarterly monitoring must collect at least three
additional routine monitoring samples the month following one or more total
coliform-positive samples.
Pursuant
to 40 CFR 141.860(c)(1), failure to take every required routine or additional
routine sample in a compliance period is a monitoring violation.
IDEM
records indicate Respondent failed to collect three additional routine
monitoring samples from the PWS in June 2018, the month following the total
coliform-positive sample, in violation of 40 CFR 141.854(j) and 40 CFR
141.860(c)(1).
12.
Pursuant
to 40 CFR 141.854(f), a system
on quarterly or annual monitoring that experiences any of the events identified
in paragraphs (f)(1) through (f)(4) of this section must begin monthly
monitoring the month following the event. The system must continue monthly or
quarterly monitoring until the requirements in paragraph (g) of this section
for quarterly monitoring or paragraph (h) of this section for annual monitoring
are met.
Pursuant to
40 CFR 141.860(c)(1), failure to take every required routine or additional
routine sample in a compliance period is a monitoring violation.
Respondent
had one subpart Y monitoring violation and one Level 1 assessment under the
provisions of 40 CFR 141.859 in a rolling 12-month period for a system on
quarterly monitoring. Respondent was required to begin monthly monitoring for
total coliform in August 2018. IDEM records
indicate Respondent failed to monitor at least one total coliform sample from
the PWS during the months of August,
September, October, and November 2018, each in violation of 40 CFR 141.854(f) and 40 CFR 141.860(c)(1).
13. Pursuant to 40 CFR 141.861(a)(4), a system that has failed to comply with
a coliform monitoring requirement must report the monitoring violation to the
State within 10 days after the system discovers the violation, and notify the
public in accordance with 40 CFR 141 subpart Q.
Pursuant
to 327 IAC 8-2.1-7, owners or operators of a PWS must give public notice for
failure to perform water quality monitoring, as required by drinking water
regulations.
IDEM records
indicate that Respondent:
a.
failed to notify persons
served by the PWS of the failure to complete and submit a Level 1 Assessment by
July 11, 2018, in violation of 40 CFR 141.859(b)(3)(i) and 327 IAC 8-2.1-7;
b.
failed to notify persons
served by the PWS of the failure to monitor at least one ground water source sample
after the total coliform-positive sample on May 21, 2018, in violation
of 40 CFR 141.861(a)(4) and 327 IAC 8-2.1-7;
c.
failed
to notify the public after the failure to collect three additional routine
monitoring samples from the PWS in June 2018, the month following after the total coliform-positive sample on May 21, 2018, in violation of 40 CFR 141.854(j) and
40 CFR 141.860(c)(1); and
d.
failed to notify persons
served by the PWS of the failure to monitor at least one total coliform sample
from the PWS for the months of August, September, October, and November 2018, in violation of 40 CFR 141.861(a)(4) and 327 IAC
8-2.1-7.
In recognition of the settlement
reached, Respondent waives any right to administrative and judicial review of
this Agreed Order.
II. ORDER
1. This Agreed Order shall be effective
(Effective Date) when it is adopted by Complainant or Complainant’s delegate
(as evidenced by signature), and the adopted Agreed Order has been received by
Respondent. This Agreed Order shall have no force or effect until the Effective
Date. In addition to addressing the violations cited in Paragraphs 7 through 13
of the Findings of Fact above, this Agreed Order also addresses any additional
violations of these same rules that may have occurred subsequent to the
issuance of the Notice of Violation and prior to the Effective Date.
2. Within 10 days of the Effective Date,
Respondent shall develop and submit to IDEM for review a site sampling plan
which identifies sampling sites and a sample collection schedule that are
representative of water throughout the distribution system. The site sampling plan
is subject to IDEM approval. In the event IDEM finds the site sampling plan
submitted by Respondent deficient, Respondent shall revise and resubmit the
plan, in accordance with IDEM’s notification(s).
Respondent, upon receipt of written
notification from IDEM, shall immediately implement the approved site sampling
plan, and collect all total coliform samples according to the approved written
plan.
3.
Within 30 days of the Effective Date,
Respondent shall complete a Level 1 assessment (attached) consistent with IDEM
requirements, and submit the completed assessment form to IDEM, which
identifies any sanitary defects detected, corrective actions completed, and a
proposed timetable for any corrective actions not already completed. In the
event IDEM determines that the assessment is not sufficient, Respondent shall
submit a revised assessment form to IDEM in accordance with IDEM’s
notification. Respondent shall complete all corrective actions in accordance
with the proposed timetable.
4.
Beginning immediately upon the Effective Date,
Respondent shall, for the purposes of this Order, monitor and report at least
one total coliform sample in the PWS per month for six (6) consecutive months
of operation (Compliance Demonstration). During the Compliance Demonstration
period, Respondent shall be subject to stipulated penalties.
It is the responsibility of Respondent
to continue monitoring for total coliform monthly pursuant to 40 CFR 141.854(f).
5.
If the results of any sample for total coliform
required by Order Paragraph 4 & 5 indicate a positive result, the following
actions shall be taken:
A. Further
analyze the positive sample for E. coli; and
B. Contact
Sandra Decastro, IDEM’s Compliance Section, Drinking Water
Branch, immediately at (317) 234-7444,
for further instructions, and complete all requirements as instructed.
Respondent
shall be subject to stipulated penalties for failure to complete any
requirements in accordance with IDEM’s notification(s), following a Maximum
Contaminant Level (MCL) exceedance.
6.
Within 30 days of the Effective Date,
Respondent shall provide public notice, for the past coliform monitoring
violations listed in Paragraph 13 of the Findings of Facts above, by following
these steps:
A. Complete
attached public notice and Certification form for public notice.
B. Post public notice where the public
has ready access for viewing, and for as long as the violation persists, but in
no case less than seven days, even if the violation is resolved.
C. Within 10 days of issuing the public
notice, Respondent shall send to IDEM a signed Certification form for public
notice and representative copy of the public notice issued. The forms that
address the past total coliform monitoring violations accompany this Agreed
Order.
7.
Immediately upon the
Effective Date, for future monitoring violations, Respondent shall provide
public notice to the State within 10 days and notify the public pursuant to 40
CFR 141.861(a)(4) and 327
IAC 8-2.1-7.
8.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
|
Brandi
Collignon, Enforcement Case Manager |
|
Office of
Water Quality – IGCN 1255 |
|
Indiana
Department of Environmental Management |
|
100 North
Senate Avenue |
|
Indianapolis,
IN 46204-2251 |
9.
In the event the terms and conditions of the
following paragraphs are violated, Complainant may assess and Respondent shall
pay a stipulated penalty in the following amount:
|
Paragraph: |
Violation: |
Stipulated
Penalty: |
|
2 |
Failure to
submit or modify the site sampling plan within the required time period. |
$100 per
week late, or part thereof. |
|
3 |
Failure to
complete the Level 1 assessment and/or submit the form to IDEM within the
required time period. |
$250 per
week late, or part thereof. |
|
3 |
Failure to
complete corrective actions for sanitary defects in accordance with the
proposed timetable. |
$300 per
corrective action. |
|
4 |
Failure to
monitor and report required samples. |
$250 per
violation. |
|
5 |
Failure to
comply with any or all of the requirements of this paragraph. |
$300 per
week for violation of any part of this requirement. |
|
6 |
Failure to
comply with any or all of the requirements of this paragraph. |
$250 per
week, or part thereof, past the 30-day deadline. |
|
7 |
If
applicable, failure to provide public
notice. |
$250 per
week, or part thereof. |
10.
Stipulated penalties shall be due and payable no later than the 30th day after
Respondent receives written notice that IDEM has determined a stipulated
penalty is due, the 30th day
being a “Due Date.” IDEM may notify Respondent at any time that a stipulated
penalty is due. Failure to notify Respondent in writing in a timely manner of a
stipulated penalty assessment shall not waive IDEM’s right to collect such
stipulated penalty or preclude IDEM from seeking additional relief against
Respondent for violation of this Agreed Order. Neither assessment nor payment of stipulated penalties
shall preclude IDEM from seeking
additional relief against Respondent for a violation of this Agreed Order. Such additional relief includes any remedies or sanctions available
pursuant to Indiana law,
including, but not limited to, civil penalties pursuant to IC 13-30-4.
11.
Penalties are payable by check to the
“Environmental Management Special Fund.” Checks shall include the Case Number 2019-25912-D,
of this action and shall be mailed to:
|
Indiana
Department of Environmental Management |
|
Accounts
Receivable |
|
IGCN, Room
1340 |
|
100 North
Senate Avenue |
|
Indianapolis,
Indiana 46204 |
12.
This Agreed Order shall apply to and be binding
upon Respondent, its successors and assigns. Respondent’s signatories to this
Agreed Order certify that they are fully authorized to execute this Agreed
Order and legally bind the party they represent. No change in ownership,
corporate, or partnership status of Respondent shall in any way alter its
status or responsibilities under this Agreed Order.
13.
In the event that the monies due to IDEM
pursuant to this Agreed Order are not paid on or before their Due Date,
Respondent shall pay interest on the unpaid balance and any accrued interest at
the rate established by IC 24-4.6-1. The interest shall be computed as having
accrued from the Due Date until the date that Respondent pays any unpaid
balance. The interest shall continue to accrue on the first of each month until
the civil penalty and any interest accrued are paid in full. Such interest
shall be payable to the “Environmental Management Special Fund,” and shall be
payable to IDEM in the manner specified above.
14.
In the event that any terms of this Agreed Order
are found to be invalid, the remaining terms shall remain in full force and
effect and shall be construed and enforced as if this Agreed Order did not
contain the invalid terms.
15.
Respondent shall provide a copy of this Agreed
Order, if in force, to any subsequent owners or successors before ownership
rights are transferred. Respondent shall
ensure that all contractors, firms and other persons performing work under this
Agreed Order comply with the terms of this Agreed Order.
16.
This Agreed Order is not and shall not be
interpreted to be a permit or a modification of an existing permit. This Agreed
Order, and IDEM’s review or approval of any submittal made by Respondent
pursuant to this Agreed Order, shall not in any way relieve Respondent of its
obligation to comply with the requirements of its applicable permits or any
applicable Federal or State law or regulation.
17.
Complainant does not, by his approval of this
Agreed Order, warrant or aver in any manner that Respondent’s compliance with
any aspect of this Agreed Order will result in compliance with the provisions
of any permit, order, or any applicable Federal or State law or regulation.
Additionally, IDEM or anyone acting on its behalf shall not be held liable for
any costs or penalties Respondent may incur as a result of Respondent’s efforts
to comply with this Agreed Order.
18.
Nothing in this Agreed Order shall prevent or
limit IDEM’s rights to obtain penalties or injunctive relief under any
applicable Federal or State law or regulation, except that IDEM may not, and
hereby waives its right to, seek additional civil penalties for the same
violations specified in the Notice of Violation.
19.
Nothing in this Agreed Order shall prevent IDEM
(or anyone acting on its behalf) from communicating with the United States
Environmental Protection Agency (US EPA) or any other agency or entity about
any matters relating to this enforcement action. IDEM or anyone acting on its
behalf shall not be held liable for any costs or penalties Respondent may incur
as a result of such communications with the US EPA or any other agency or
entity.
20.
This Agreed Order shall remain in effect until
Respondent has complied with the terms and conditions of this Agreed Order and
IDEM issues a Resolution of Case (close out) letter to Respondent.
|
TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
|
Department
of Environmental Management |
Indiana
South District of the Wesleyan Church,
Inc. |
|
|
|
|
By:________________________ |
By:________________________ |
|
Samantha K.
Groce, Chief |
|
|
Water
Enforcement Section |
|
|
Surface Water, Operations & |
Printed:_____________________ |
|
Enforcement Branch |
|
|
Office of Water Quality |
Title:_______________________ |
|
|
|
|
Date:______________________ |
Date:_______________________ |
|
|
|
|
|
COUNSEL
FOR RESPONDENT: |
|
|
|
|
|
By:________________________ |
|
|
|
|
|
Date:______________________ |
|
|
|
|
APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
|
|
MANAGEMENT
THIS ___________ DAY OF ________________, 20___. |
|
|
|
|
|
|
For
The Commissioner: |
|
|
|
|
|
Signed on
September 18, 2019 |
|
|
Martha
Clark Mettler |
|
|
Assistant
Commissioner |
|
|
Office
of Water Quality |